Cri. Writ Petition No.254 of 1999

20th April, 1999

Petitioner Counsel: Shri. A.G. TORASKAR
Respondent Counsel: Smt. V.K. TAHILRAMANI

Cases Cited:
The Durand Didier Vs. Chief Secretary, Union Territory of Goa, AIR 1989 SC 1966 [Para 8]
Maktool Singh Vs. State of Punjab, 1999(2) SCALE 26 [Para 9]
Mohd. Ismail and etc. Vs. State of Maharashtra, 1998 ALL MR (Cri) 110=1998 Cri.L.J. 1361 [Para 10]
Hassan Ismail Dalvi Vs. State of Maharashtra, Cri.W.P. No.648 of 1998 dt. 10-8-98 with Cri. W. P. No. 748 of 1998 [Para 10]
Shaikh salim Guddu s/o Sheikh Gani Vs. State of Maharashtra, 1996(1) Mh.L.J. 843 [Para 10]
Ishwar Singh M.Rajput Vs. State of Gujarat, V.1991 (2) Crimes 160 [Para 11]
Berlin Joseph & Ravi Vs. State, IV-1992(1) Crimes 1222 [Para 11]
Anwar Vs. State of Punjab, 1995 Cri L.J. NOC 414 (Raja) [Para 11]
Sita Singh Vs. State of Punjab, 1995 Cri L.J. 1733 [Para 11]

JUDGMENT

JUDGMENT :- Rule.

2. By consent,rule made returnable forthwith and heard both the learned counsel: Shri Toraskar Advocate appointed for the petitioner and Smt.Tahilramani, Public Prosecutor for the State.

3. This is petition by a convict who is undergoing sentence of 10 years imprisonment pursuant to his conviction under section 21 of the Narcotic Drugs and Psychotropic Substances Act.1985 (for short N.D.P.S.Act) by the Additional Sessions Judge, Malegaon District Nasik in Sessions Case No. 98 of 1991 passed on 2nd April, 1997. Under the said order he was sentenced to 10 years R.I. and a fine of Rs.1,00,000/- in default to suffer further imprisonment for two years. It is brought to our notice that the petitioner's Criminal appeal No. 247 of 1992 was dismissed by this Court on 20th August, 1993. Criminal application No. 1119 of 1994 for review of the order dated 20th August, 1993 was dismissed by this Court on 28th June, 1994.

4. The petitioner has applied through jail that on the ground of illness of his wife, he should be granted leave on parole to enable him to treat his ailing wife. The short point which arises for our consideration is whether in view of the provisions of Sec.32-A of the N.D.P.S.Act, is it open for us to grant the petitioner the benefit of the provisions of the Prisons (Bombay Furlough and Parole) Rules 1959 (for short "Prisons rules"). Since the petitioner has applied for parole we are directly concerned with the provisions of rule 19 of the said Rules.

5. Section 32-A of the N.D.P.S. Act reads as under:

"32-A: No suspension, remission or commutation in any sentence awarded under this Act: Notwithstanding anything contained in the Code of criminal procedure, 1973 ( 2 of 1974), or any other law for the time being in force but subject to the provisions of sec.33 no sentence awarded under this Act (other than Sec.27) shall be suspended or remitted or commuted.

Admittedly, the petitioner has not been convicted and sentenced under sec.27 of the N.D.P.S. Act and there is no question of the benefit of the provisions of the Probation of Offenders Act, 1958 nor of the provisions of sec. 360 of the Code of Criminal Procedure 1973. Where a person who is under 18 years of age, has been convicted and is punished under sec.26 or 27 of the N.D.P.S.Act that an exception could be made . Section 33 of the N.D.P.S. Act reads as under:

"33. Application of Sec. 360 of the Code of Criminal Procedure 1973 and of the Probation of Offenders Act, 1958:- Nothing contained in Sec. 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under Sec.26 or Sec.27"

Since we are not concerned with a case of conviction under section 26 of the N.D.P.S. Act, we need not elaborate this point any further.

6. Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959 as amended read as under:

"19. When a prisoner may be released on parole : A prisoner may be released on parole for such period not exceeding thirty days at a time, as the competent authority referred to in rule 18, in its discretion may order, in case of serious illness, or death of nearest relative such as mother, father, sister, brother,children, spouse of the prisoner: or in case of natural calamity such as house collapse, floods, fire. No such parole or extension of parole shall be granted without obtaining police report in all cases except in the case of death of his nearest relative mentioned above.

Provided that a prisoner shall not be released on parole for one year after expiry of his last parole except in case of death of his nearest relatives mentioned above."

Having regard to the illness of the petitioner's wife, Shri Tolskar, the learned Counsel for the petitioner contends that the petitioner would be entitled to be released on parole on such terms and conditions as this Court may deem fit. On the other hand, the learned Public Prosecutor Smt. Tahilramani opposes the application for parole and contends that having regard to the mandate of sec.32-A of the N.D.P.S.Act no sentence awarded under the said Act can be suspended, remitted or commuted. She contends that grant of parole would amount to suspension whereas grant of furlough would amount to remission: neither of which is permissible if a convict has been sentenced for the offence punishable under the N.D.P.S. Act other than sec 27 of the said Act.

7. We may at the out set refer to the Statement of Objects and Reasons of the N.D.P.S. Amending Act No.2 of 1989 under which sec.32-A was inserted in the N.D.P.S. Act. The Statement of Objects and Reasons discloses that parliament was concerned with the growing menace of illicit drug trafficking and its delirious effect on the youth of the country and indeed all over the world. The use of narcotics drugs had threatened to destroy the very fibre of the society and had become instrumental in subverting the tender souls of the younger generation which was badly contaminated by drug abuse. It was because of this that the Parliament thought it fit to insert sec 32-A in the parent Act. the Statement of Objects and reasons reads as under:

"In recent years, India has been facing a problem of transit traffic in illicit drugs. The spill-over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishments for drug trafficking offence. Even though the major offences are non bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it has been felt.

2. A Cabinet Sub-Committee which was constituted for combating drug traffic and preventing drug abuse, also made a number of recommendations for strengthening the existing law. In the light of the recommendations of the Cabinet Sub-Committee and the working of the Narcotic Drugs and Psychotropic Substances Act in the last three years it is proposed to amend the said Act. These amendments, inter alia provide for the following.

(i) to constitute a National fund for Control of Drugs Abuse to meet the expenditure incurred in connection with the measures for combating illicit traffic and preventing drug abuse.

(ii) to bring certain controlled Substances which are used for manufacture of Narcotic Drugs and Psychotropic Substances under the ambit of Narcotic Drugs and Psychotropic Substances Act and to provide deterrent punishment for violation thereof.

(iii) to provide that no sentence awarded under the Act shall be suspended, remitted or commuted.

(iv) to provide for pre-trial disposal of seized drugs:

(v) to provide death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs.

(vi) to provide for forfeiture of property and a detailed procedure relating to same and

(vii) to provide that the offences shall be cognizable and non-bailable.

3.The Bill seeks to achieve the above objectives."

8. In The Durand Didier Vs. Chief Secretary, Union Territory of Goa (A.I.R.1989 Supreme Court 1966) the Apex Court considered the threats posed by the menace of drug traffic and abuse of drug and narcotics by youth of the country. In para 24 of the judgment at page 1971 the Apex Court observed as under:

"24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming dayazialing menace causing derelious effects and deadly impact on the society as a whole, the Parliament in its wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. As we have now rejected the plea of the defence holding that the penal provision of Section 27(a) has no role to play as the prohibited drugs and substances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the notification the sentence of 10 years rigorous imprisonment and the fine of Rs.1,00,000/- with the default clause as modified by the High Court does not call for interference."

9. Recently, the Apex Court had occasion to consider the question as to whether suspension, remission or commutation of any sentence awarded under the N.D.P.S. Act can be ordered in view of provisions of section 32-A of the N.D.P.S. Act Apex Court considered the provisions of section 32-A as also sec.36-B of the N.D.P.S. Act. Sec.36-B of N.D.P.S. Act provides that the High Court may exercise, to far as may be applicable, all the powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure, 1973 on a High Court, as if a special Court within the local limits of the jurisdiction of the High Court were a Court of session trying cases within the local limits of the jurisdiction of the High Court. In Maktool Singh Vs. State of Punjab (1999(2) SCALE 26), Apex Court came to conclusion that section 32-A of the N.D.P.S. Act (excepting the cases falling under sec.27 of said Act) has taken away the powers of the Court to suspend the sentence either during the pendency of any appeal or otherwise. Similarly, the power of the Government under Sections 432, 433 and 434 of the Code of Criminal Procedure was also taken away. Section 32-A of the N.D.P.S. Act would have an overriding effect with regard to the powers of suspension, remission and commutation provided under the Criminal Procedure Code. The Apex Court also considered the submission that if it was held that the High Court had no power to suspend sentence under any contingency, the long duration of pendecy of Appeal would result in serious miscarriage of justice in some cases. The Apex Court being alive to the situation directed that the matters could be expedited to ensure speedy disposal. Relevant observations are to be found in Para 24 and 25 of the Judgment at page 32

10. Similar view has been taken by this Court in the following 3 cases:

(i) In Mohd. Ismail and etc. Vs. State of Maharashtra and another (1998 Cri.L.J. 1361 : (1998 ALL MR (Cri) 110)) the Division Bench took a view that grant of furlough has a result of releasing the convict who was convicted for the offence punishable under Sec.22 of the N.D.P.S. Act. Since furlough is a remission of sentence, it was held that such a remission of sentence under sec.22 of the N.D.P.S. Act was impermissible in law in view of the mandate of sec.32-A of the N.D.P.S. Act, 1985 :

(ii) In Hassan Ismail Dalvi Vs. State of Maharashtra (Crim.Writ Petition No.648 of 1998 decided on 10th August, 1998 with Criminal Writ Petition No. 748 of 1998) the question arose as to whether mandamus can be issued for grant of parole or furlough to the petitioners. An argument was advanced that provisions of Sec.32-A of the N.D.P.S.Act would be violative of the provisions of Art. 14 and 21 of constitution of India. The argument has in term been rejected and it has been held that the power to grant suspension, remission or commutation of the sentence cannot be exercised if convict was sentenced for an offence punishable under the N.D.P.S. Act excepting where his case fell under sections 33 and 27 of the said Act:

(iii) In Shaikh salim Guddu s/o Sheikh Gani Vs. State of Maharashtra and others (1996(1) Mh.L.J. 843), Division Bench of this Court considered the question as to whether sec.32-A of the N.D.P.S. Act was violative of Arts.14 and 21 of the constitution of India. It was held that the offence under the N.D.P.S.Act barring those to which sections 33 and 27 of the said Act applied fell into a separate and special class. Legislative history leading to the passing of the N.D.P.S. Act made it clear that the law was enacted to make stringent provisions for the control and regulation of operation relating to narcotic drugs and psychotropic substances as also for forfeiture of property derived from or used in illicit traffic in narcotic drugs and psychotropic substances. The law was enacted to implement the provisions of international conventions on Narcotic Drugs and Psychotropic Substances as is clear from the preamble of the N.D.P.S. Act. In this view of the matter, the Division Bench came to the conclusion that there was no substance in the challenge to the validity of the provisions of sec.32-A of the N.D.P.S. Act on the ground that said provision violated either Art.14 or 21 of the constitution. It was therefore held that since sec.32-A of the N.D.P.S. Act was a special provision in a special Statute dealing with a special object it could not be said to be unreasonable or affecting the life and liberty of a convict so as to be violative of the provisions of Arts. 14 and 21 of the Constitution of India.

11. We may also indicate that similar view has been expressed by many other High Courts though it is not necessary for us to elaborate the said decisions. On the question as to whether sec.32-A of the N.D.P.S. Act. overrides the provisions of the prisons Rules there seems to be unanimity of views amongst the High Courts that having regard to the provisions of sec.32-A of the N.D.P.S. Act the persons who are convicted under the said Act, barring the exceptions, are not entitled to be released either on furlough or parole. No suspension, remission or commutation of any sentence awarded under the N.D.P.S. Act can be ordered excepting in cases which are specifically excluded by sec.32-A of the N.D.P.S. Act. This view has been expressed in (1) Ishwar Singh M.Rajput Vs. State of Gujarat V.1991 (2) crimes 160 (ii) Berlin Joseph & Ravi Vs. State (IV-1992(1) Crimes 1222 (iii) Anwar Vs. State of Punjab (1995 Cri L.J. NOC 414 (Raja): and (iv) Sita Singh Vs. State of Punjab (1995 Cri L.J. 1733).

12. In view of the above it is clear that there is no power to suspend, remit or commute the sentence of a convict who has been sentenced for the offence punishable under the N.D.P.S. Act excepting the cases exempted under sec.32-A itself. Having regard to the mandate of section 32-A neither the State Govt. nor even the High Court has power to order suspension, remission or commutation of such a sentence. Thus the right of the petitioner if any under Rule 19 of the Prisons rules, quoted above would be subject to the provisions of sec 32-A of the N.D.P.S. Act. Since the statutory provisions contained in sec. 32-A will have overriding effect petitioner's application for grant of furlough under rule 19 of the Prisons rules is liable to be rejected. In the circumstances, writ petition is rejected.

Petition rejected